Before Bridges, C.j., Herring, And Southwick, JJ.
The opinion of the court was delivered by: Herring, J., For The Court:
Lindsey v. State, 96-KA-00916-COA
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 06/26/96
TRIAL JUDGE: HON. BARRY W. FORD
COURT FROM WHICH APPEALED: PONTOTOC COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: SEXUAL BATTERY: SENTENCED AS A HABITUAL TO SERVE 30 YRS IN CUSTODY OF THE MDOC
MOTION FOR REHEARING FILED:
This is a sexual battery case in which James Lindsey was convicted and sentenced by the Circuit Court of Pontotoc County to serve thirty years in the custody the Mississippi Department of Corrections. Lindsey now appeals this decision, citing the failure of the trial court to grant him a competency hearing, the failure of the trial court to declare a mistrial when one of the potential jurors stated that she had a previous altercation with Lindsey, the failure of the trial court to grant his motion for a judgment notwithstanding the verdict, and several errors involving May 21, 1998, Deoxyribonucleic Acid (DNA) evidence used against him. We have examined each of these issues and rule that none have merit. Thus, we affirm.
In the early morning hours of February 21, 1993, the seven-months-pregnant victim of this sexual assault was awakened by a knock on the door of her home. The victim opened the door and recognized the male visitor as a neighbor whom she did not know by name but had seen and talked to on occasion. The man informed her that he was having car trouble and asked if she had any tools that he could borrow. The victim, wearing pajamas, invited the man inside and went into her bedroom to change into more appropriate clothing. Before the victim entered the bedroom, the man asked her if he could spend the night on her sofa. She refused on the basis that her boyfriend would object. Once the victim had begun to change clothes, the man pushed open the door to her bedroom and demanded that she take off her clothing. She testified that the man was wearing a knife on his side, and that he told her that if she did not cooperate, her unborn baby "might not make it." Out of concern for her child, the victim removed her clothing and allowed the man to have sexual intercourse with her without offering resistance.
After telling the victim that it would do no good to call the police because they would not believe her, the assailant left the house. The victim did not heed her assailant's advice, and promptly obtained a butcher's knife, opened a window, cut the screen, and climbed out of the window and ran to a neighbor's house where she called law enforcement officers. She was then taken to a nearby hospital where she was examined by a physician. As part of this examination, an examination referred to by law enforcement and medical personnel as a "rape kit" was performed on the victim. The rape kit, which is merely a series of physical examinations, is used to gather evidence including blood, semen, saliva, and hair samples. The victim ultimately identified James Lynn Lindsey as the person who assaulted her. He was promptly arrested.
After Lindsey's arrest, the State sent a sample of semen taken from the body of the victim to a DNA testing facility in Louisiana in an attempt to match the semen to a sample of blood taken from Lindsey. The results of the test revealed a "1 in 40,000 match." In other words, the probability that Lindsey was not the donor of the semen was only 1 in 40,000.
Lindsey's attorney, both during trial and in closing argument, challenged both Lindsey's presence at the scene of the crime and, alternatively, asserted that the victim consented to Lindsey's sexual advances. Lindsey put on evidence tending to show that he was somewhere else at the time of the crime. For example, Karen Campbell testified that she witnessed an altercation between Lindsey and Tracy Sneed at some time between 4:00 and 5:00 A.M. outside the city limits of Pontotoc, Mississippi. On cross-examination, Campbell admitted that Lindsey was intoxicated when she observed him, and the location where she saw Lindsey is less than a ten-minute drive to the victim's residence. Lindsey also called his sister and mother to testify. They both stated that Lindsey was not in the habit of carrying a knife and that they had never seen him with one.
After hearing the evidence, the jury chose to believe the victim's testimony and identification of Lindsey, and convicted him of sexual battery. He has since perfected his appeal to this Court citing the following issues enumerated below, which are taken verbatim from his brief.
I. THAT THE CIRCUIT JUDGE ERRED IN REFUSING TO HAVE THE DEFENDANT EXAMINED BY A PSYCHOLOGIST OR PSYCHIATRIST PRIOR TO TRIAL WHERE HIS ATTORNEY FILED A SWORN AFFIDAVIT AND THE DEFENDANT HAD PREVIOUSLY BEEN COMMITTED TO THE STATE MENTAL HOSPITAL.
II. THAT THE HONORABLE CIRCUIT COURT ERRED IN REQUIRING DEFENSE COUNSEL TO RELEASE IT'S REPORT FROM IT'S [SIC] D.N.A. CONSULTANT PRIOR TO THE TRIAL TO THE STATE WHEN DEFENSE COUNSEL HAD ADVISED THE COURT THAT THIS CONSULTANT WAS BEING USED SOLELY ...